This was a suit by Jacob C. Mann against the Tacoma Lana Company, in which the court below dismissed the bill (44 Fed. 27), and plaintiff appealed.
On July 12, 1890, appellant, as plaintiff, filed his bill in the circuit court of the United States for the district of Washington to restrain the defendant from entering and trespassing upon certain premises. Subsequently, by leave of the court, an amended bill was filed. In that, plaintiff claimed title to three separate tracts. The allegations as to one were as follows:
The title to the other two tracts was acquired in a similar way, except that plaintiff did not claim to have himself entered them, but only to hold by deed from the locators. The character of the lands, and the use to which plaintiff intended to put them, were thus stated:
It is upon these lands that the bill alleged that the defendant was trespassing. The certificates of location under which these tracts were entered, being what is known as 'Valentine Scrip,' were issued under the authority of the act of congress of April 5, 1872, entitled 'An act for the relief of Thomas B. Walentine,' which authorized the circuit court of the United States for the district of California to hear and decide upon the merits of the claim of Thomas B. Valentine to a certain specified Mexican grant. The third section of the act is as follows:
Proceedings were had under this statute in the circuit court, and a decree was rendered in favor of the claimant, which afterwards and on January 6, 1874, was affirmed by this court. The facts respecting this grant are thus stated by the secretary of the interior in a decision quoted by plaintiff's counsel:
To this bill a demurrer was filed, and on October 22, 1890, a decree was entered sustaining the demurrer and dismissing the bill, from which decree of dismissal plaintiff has brought his appeal to this court.
T. H. N. McPherson and Edwin B. Smith, for appellant.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.
The single question in this case is as to the title of plaintiff to the premises. The lands are tide lands, covered and uncovered by the flow and ebb of the tide, and are situated in Commencement bay, near to the city of Tacoma. He does not claim by any grant from the state of Washington, nor by any act of congress specifically granting him these lands, or in terms providing for the location of scrip upon tide lands, but insists that, although the statute under which this scrip was issued only authorized its location upon 'unoccupied and unappropriated public lands,' he had a right to locate it upon these tide lands, and acquire full title thereto.
That the title to tide lands is in the state is a proposition which has been again and again affirmed by this court, some of the earlier opinions going so far as to declare that the United States had no power to grant to individuals such lands at any time, even prior to the admission of the state and during the territorial existence. However, in the recent case of Shively v. Bowlby, 152 U.S. 1 , 14 Sup. Ct. 548, after a careful review of the authorities, it was held that the denial in those opinions of the power of congress to make such a grant was not strictly correct; but it was also held that, although congress could, it had never undertaken by general laws to dispose of such lands, and in the summing up at the close of the opinion it was stated: 'The United States, while they hold the country as a territory, having all the powers both of national and of municipal government, may grant, for appropriate purposes, titles or rights in the soil below high-water mark of tide waters. But they have never done so by general laws; and, unless in some case of international duty or public exigency, have acted upon the policy, as most in accordance with the interest of the people and with the object for which the territories were acquired, of leaving the administration and disposition of the sovereign rights in navigable waters, and in the soil under [153 U.S. 273, 284] them, to the control of the states, respectively, when organized and admitted into the Union.'
It is unnecessary, in view of this recent examination of the question, to enter into any discussion respecting the same. It is settled that the general legislation of congress in respect to public lands does not extend to tide lands. There is nothing in the act authorizing the Valentine scrip, or in the circumstances which gave occasion for its passage, to make an exception to the general rule. It provided that the scrip might be located on the unoccupied and unappropriated public lands, but the term 'public lands' does not include tide lands. As said in Newhall v. Sanger, 92 U.S. 761 : 'The words 'public lands' are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.' See also Leavenworth, etc., R. Co. v. U. S., Id. 733; Doolan v. Carr, 125 U.S. 618 , 8 Sup. Ct. 1228.
Further, in the act providing for the admission of Washington, Montana, and the two Dakotas, into the Union (25 St. 677), among the conditions imposed was this: 'That the people inhabiting said proposed states do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof.' No one can for a moment suppose that it was the thought of congress to change the whole policy of the government, and reserve to the nation the title and control of the soil beneath the tide waters and those of navigable streams. Indeed, in the constitution of Washington (article 17, 1) there is an express assertion of the title of the state to the tide lands within its borders.
That there was no intent in the Valentine scrip act to make any exception to the general rule is evident, not merely from the use of a term having such an accepted meaning, but from the further provision that the land, 'if unsurveyed when taken, to conform, when surveyed, to the general system of United States land surveys,' for under that general system surveys are not extended to tide lands, nor those under navigable rivers above tide water.
But it is claimed that there is a peculiar equity attaching to the Valentine scrip because the Miranda grant in fact embraced tide lands, and was of great value,-$2,000,000, as stated in the debate in congress. It is said by counsel that 'the intention of congress, as indicated by this act, under the circumstances, was manifestly to give Valentine the right of selection of lands of the United States belonging to the same classes as were to be found in the Miranda grant, which he relinquished. The import of the language is precisely this, and the contract to be equal requires the construction which the language plainly means. Any other construction would be against the just intentions of the national legislature.'
So far as respects the great value of the Miranda grant, it was that which was created by the building up of a city within its borders, and not something which inhered in the land itself. So that, when Valentine failed to secure a confirmation of that grant, he was not losing property which was of the value of $2,000,000 when granted by the Mexican government, but only losing the opportunity to appropriate $2,000,000 worth of value created by the labors of others upon lands to which they supposed they had title.
Further, as appears from the statement made by the secretary of the interior, he had lost all legal right to this land, for, when a commission had been provided for investigating the validity of such claims, he presented his claim for confirmation, and then withdrew it. Congress had fulfilled all obligations to him growing out of the treaty with Mexico, and when, by his own act, he had forfeited his legal claims to the land, it was a mere act of grace by which was given to him the right to select an equal amount of land elsewhere. If congress had thought that it was necessary, in order to do justice, that he should be permitted to select an equal quantity of land of like character, it was easy to have expressed that intention. Having failed to do so, and omitted any reference [153 U.S. 273, 286] to tide lands, its donation to him is to be construed as any other grant of the government, and no unexpressed and unsuggested intention should be attributed to congress; certainly no intention to make the people of the state of Washington, who otherwise would receive these tide lands for their general benefit, suffer by reason of his neglect to properly assert his claim to lands in the state of California. There is, therefore, nothing in this matter of the Valentine scrip to take the case out of the rule laid down in Shively v. Bowlby.
Reliance is also placed on article 17, 2, of the constitution of the state of Washington, which reads: 'The state of Washington disclaims all title in and claim to all tide, swamp, and overflowed lands patented by the United States; provided, the same is not impeached for fraud.' In respect to this it is enough to say that these lands were not patented. It is doubtless true, as said by this court in Stark v. Starrs, 6 Wall. 402, 418, that 'the right to a patent once vested is treated by the government when dealing with the public lands as equivalent to a patent. issued.' But here there was no right to a patent. The entry in the local land office, and the receipt issued by the local land officers, were unauthorized acts, and gave no right to a patent; and it cannot be supposed that the state of Washington, when it excluded from its claim of title lands which the government had in the due administration of its land department disposed of by a patent, meant thereby to exclude every tract for which a local land officer might wrongfully issue a receiver's receipt.
These are all the matters involved in this case. We see no error in the ruling of the circuit court, and its decree is affirmed.